The Washington PostDemocracy Dies in Darkness

One of Trump’s flimsiest lawsuits yet

Republican presidential candidate Donald Trump during the Republican presidential debate hosted by CNN in 2016. (Robyn Beck/AFP/Getty Images)

That Donald Trump files frivolous lawsuits aimed at intimidating his critics and rallying his supporters is not something that’s in any legitimate dispute. Over and over, his lawsuits have failed in court — particularly when the target has been election results or media companies.

Last month, a federal judge roundly rejected another of the former president’s lawsuits — this one against Hillary Clinton — labeling it “a two-hundred-page political manifesto” rather than a serious claim. The judge also cited the “audacity of Plaintiff’s legal theories and the manner in which they clearly contravene binding case law.”

So how does Trump respond to that? Naturally, by filing another audacious, transparently political lawsuit that also seeks to disregard binding case law.

Trump’s latest lawsuit targets CNN, which he wants to pay him $475 million for invoking Adolf Hitler in its coverage of him. And perhaps even more than its predecessors, this one should be understood for exactly what it is: a personal grievance in search of an actual legal strategy. (In 2020, Trump’s campaign also sued The Washington Post over opinion columns alleging that the campaign was connected to Russian electoral interference; that case is pending. A similar suit against the New York Times was dismissed last year.)

The lawsuit is riddled with factual errors and non sequiturs. The argument, effectively, is that CNN invoking Hitler while talking about Trump — including calling his quest to overturn the 2020 election based on voter-fraud falsehoods the “big lie” — automatically defames him.

But to prove that claim, the lawsuit leans heavily on random Twitter users who responded to CNN’s work by making a much more direct comparison between Trump and Hitler than the network itself had.

Trump’s legal team contends that CNN must have known citing the “big lie” would infringe on Trump’s rights because the network’s new head Chris Licht reportedly said he didn’t like the phrase. But the report they cite (from Fox News) merely states Licht didn’t like the phrase because it was imprecise and reflected language used by Democrats, rather than because he worried about legal action. The lawsuit also claims CNN anchors “were explicitly instructed” by Licht not to use the phrase,” but the Fox report says the opposite — that Licht “did not issue a mandate or formal guidance to stop using the term.”

At another point, when the lawsuit alleges CNN has been spreading propaganda, it cites as proof that “an NBC News/Wall Street Journal poll from 2019 found that 99 percent of CNN viewers believed that the Plaintiff lied about the Russia investigation.” But the poll didn’t ask about Trump lying; rather, it asked about whether he had not been “honest and truthful” about it. And the Mueller Report found that Trump had indeed not been honest and truthful.

The lawsuit also cites CNN merely reporting on Democrats who compared Trump to Hitler, saying such coverage “is nothing more than self-serving pronouncements by political opponents of the Plaintiff and their news proxy (and political participant), CNN.” If reporting on such claims is defamation, Fox News might want to watch out.

But even beyond the odd and sometimes false presentation of the details, the lawsuit advances a remarkably thin and novel legal theory that just begs a judge to dispatch it.

First, it argues that CNN’s reporting meets the legal standard of “actual malice” set forth in the 1964 Supreme Court case New York Times v. Sullivan. That precedent requires plaintiffs to prove the statements made by the media were not only false and defamatory, but that they were made either with the knowledge that they were false or with “reckless disregard for the truth.”

But just as quickly, it argues that that standard shouldn’t apply.

In a footnote, it says that “that standard does not — and should not — apply where the media defendant is not publishing statements to foster debate, critical thinking, or the ‘unfettered interchange of ideas’ but rather seeks to participate in the political arena by offering propaganda.”

The argument is apparently that CNN is not acting as a media organization, so it should not benefit from the higher standard for legal damages in New York Times v. Sullivan. That would be a startling conclusion for a judge to make, no matter what you think about CNN.

In making this argument about abandoning the “actual malice” standard, Trump’s lawyers do quote a judge — but not one making a legally binding decision. Rather, the quote comes from a dissent from a 2021 case in which conservative federal appeals court judge Laurence H. Silberman called for abandoning the “actual malice” standard. (Silberman died the day before Trump filed suit.) Supreme Court Justice Clarence Thomas has also called for overturning that precedent, while Justice Neil M. Gorsuch has expressed a desire to revisit the issue. But it remains the legal standard.

With that out of the way, Trump’s lawyers proceed to argue that any comparison between a public official or political candidate and Hitler is “defamation per se” — that is, that such comparisons are so damaging that they must be considered defamatory on their face.

“Being likened to Hitler is historically defamation per se as such a comparison tends to subject the target — and has subjected the Plaintiff — to hatred, contempt, distrust, ridicule, and even fear; the comparison has had an adverse impact on the Plaintiff’s reputation and political career,” it says. It adds: “When a public official, or political candidate, is likened to Hitler, it is defamation per se as the statement imputes a characteristic or condition incompatible with the proper exercise of that public office.”

As some noted when the lawsuit was filed, this would effectively open up anyone who has ever compared a politician to Hitler to being sued. What’s more, that legal argument doesn’t address the truthfulness of the statement. What if the comparison was between an actual neo-Nazi and Hitler, for example?

The lawsuit ultimately does get around to citing actual court decisions in making its case. It argues that “the Hitler characterization is one that courts across jurisdictions have historically considered defamation per se.”

The evidence cited for this is bad.

In a footnote, Trump’s legal team cites State v. Guinn, O’Donnell v. Philadelphia Record Co. and Goodrich v. Reporter Pub. Co. If you haven’t heard of these cases, it’s because they are not federal ones. They also all predate 1964′s New York Times v. Sullivan, meaning the “actual malice” standard couldn’t have been applied because it didn’t yet exist.

What’s more, even these cases don’t seem to apply to the case at hand. As Akiva Cohen noted, the last one dealt with a Texas newspaper which falsely stated that a local draft board had declared the plaintiff to be “pro-Nazi.” The second one dealt with a Philadelphia newspaper which stated that the plaintiff “has broadcast his sympathy with most of Hitler’s aims — such as … liquidation of Jews.”

In other words, these cases turned on factual claims rather than just opinions or comparisons. Trump’s legal team, though, would like to argue that any likening of Trump and what Hitler did is illegal, even if it’s obviously offered as an opinion and even if the comparison isn’t as direct as it was in these cases.

Oh, and Trump’s legal team would like the courts to ignore Supreme Court precedent to find in their favor.

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